Unconstitutional Federal Laws

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Impossible: The Case Against Lee Harvey Oswald

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Scary, huh? The presence of extra nodes in a flow-chart means that there are more "loopholes" for unconstitutional legislation to slip through. Perhaps that explains the next few pages, which consist of laws passed by Congress that abridge freedom of speech or of the press. They are, perhaps, the ultimate proof that the real First Amendment isn't the one in the Constitution.

Incidentally, as you peruse these laws, you may find yourself in agreement with some of them from a policy standpoint - I know I do. But if the First Amendment is real, then these laws simply cannot exist at the Federal level; if they are to exist at all, they must be passed by State legislatures. Impractical? Yes. But impracticality is a price the 1791 First Amendment commands we pay.


10 U.S.C. §772 When wearing . . . authorized
(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.


17 U.S.C. §108 Limitations on exclusive rights
(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work . . .


17 U.S.C. §111 Limitations on exclusive rights . . .
(e) Nonsimultaneous Secondary Transmissions by Cable Systems. -
(1) Notwithstanding those provisions of the second paragraph of subsection (f) relating to nonsimultaneous secondary transmissions by a cable system, any such transmissions are actionable as an act of infringement under section 501, and are fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, unless -
(A) the program on the videotape is transmitted no more than one time to the cable system's subscribers; and
(B) the copyrighted program, episode, or motion picture videotape, including the commercials contained within such program, episode, or picture, is transmitted without deletion or editing; and
(C) an owner or officer of the cable system (i) prevents the duplication of the videotape while in the possession of the system, (ii) prevents unauthorized duplication while in the possession of the facility making the videotape for the system if the system owns or controls the facility, or takes reasonable precautions to prevent such duplication if it does not own or control the facility, (iii) takes adequate precautions to prevent duplication while the tape is being transported, and (iv) subject to clause (2),erases or destroys, or causes the erasure or destruction of, the videotape; and
(D) within forty-five days after the end of each calendar quarter, an owner or officer of the cable system executes an affidavit attesting (i) to the steps and precautions taken to prevent duplication of the videotape, and (ii) subject to clause (2), to the erasure or destruction of all videotapes made or used during such quarter . . .


17 U.S.C. §601 Manufacture . . . of certain copies
Prior to July 1, 1982 . . . the importation into or public distribution in the United States of copies of a work consisting preponderantly of nondramatic literary material that is in the English language and is protected under this title . . . is prohibited unless the portions consisting of such material have been manufactured in the United States or Canada. [exceptions and clarifications follow]


17 U.S.C. §1002 Incorporation of copying controls
(a) Prohibition on Importation, Manufacture, and Distribution. - No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to -
(1) the Serial Copy Management System;
(2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system's method of serial copying regulation and devices using the Serial Copy Management System; or
(3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying . . .


18 U.S.C. §596 Polling armed forces
Whoever, within or without the Armed Forces of the United States, polls any member of such forces . . . either before or after he executes any ballot under any Federal or State law, with reference to his choice of or his vote for any candidate, or states, publishes, or releases any result of any purported poll taken from or among the members of the Armed Forces of the United States or including within it the statement of choice for such candidate or of such votes cast by any member of the Armed Forces of the United States, shall be fined not more than $1,000 or imprisoned for not more than one year, or both.


18 U.S.C. §605 Disclosure of names of persons on relief
Whoever
, for political purposes, furnishes or discloses any list or names of persons receiving compensation, employment or benefits provided for or made possible by any Act of Congress appropriating, or authorizing the appropriation of funds for work relief or relief purposes, to a political candidate, committee, campaign manager, or to any person for delivery to a political candidate, committee, or campaign manager; and
Whoever receives any such list
or names for political purposes -
Shall be fined not more than $1,000 or imprisoned not more than one year, or both.


18 U.S.C. §709 False advertising or misuse of names
Whoever, except with the written permission of the Director of the Federal Bureau of Investigation, knowingly uses the words 'Federal Bureau of Investigation' or the initials 'F. B.I.', or any colorable imitation of such words or initials, in connection with any advertisement, circular, book, pamphlet or other publication, play, motion picture, broadcast, telecast, or other production, in a manner reasonably calculated to convey the impression that such advertisement, circular, book, pamphlet or other publication, play, motion picture, broadcast, telecast, or other production, is approved, endorsed, or authorized by the Federal Bureau of Investigation . . . [s]hall be punished as follows: a corporation, partnership, business trust, association, or other business entity, by a fine of not more than $1,000; an officer or member thereof participating or knowingly acquiescing in such violation or any individual violating this section, by a fine of not more than $1,000 or imprisonment for not more than one year, or both.


18 U.S.C. §793 Gathering, transmitting, or losing defense information
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing . . . or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it . . . [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.


18 U.S.C. §794 Gathering or delivering defense information
Whoever, with intent or reason to believe that it is to be used to the
injury of the United States or to the advantage of a foreign nation, communicates . . . or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country . . . any document, writing, . . . or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.


18 U.S.C. §1302 Mailing lottery tickets or related matter
Whoever knowingly . . . delivers by mail . . . [a]ny circular concerning any lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance . . . or [a]ny newspaper, circular, pamphlet, or publication of any kind containing any advertisement of any lottery, gift enterprise, or scheme of any kind offering prizes dependent in whole or in part upon lot or chance, or containing any list of the prizes drawn or awarded by means of any such lottery . . . [s]hall be fined not more than $1,000 or imprisoned not more than two years, or both; and for any subsequent offense shall be imprisoned not more than five years.


18 U.S.C. §1304 Broadcasting lottery information
Whoever broadcasts by means of any radio station for which a license is required . . . or . . . knowingly permits the broadcasting of, any advertisement of or information concerning any lottery . . . shall be fined not more than $1,000 or imprisoned not more than one year, or both.

Each day's broadcasting shall constitute a separate offense.


18 U.S.C. §1381 Enticing desertion . . .
Whoever . . . attempts . . . to entice . . . any person in the Armed Forces of the United States, or who has been recruited for service therein, to desert therefrom . . . [s]hall be fined not more than $2,000 or imprisoned not more than three years, or both.


18 U.S.C. §1462. Importation or transportation of obscene matters
Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce -
(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or (c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or whoever knowingly takes from such express company or other common carrier any matter or thing the carriage of which is herein made unlawful -
Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.


This was bad enough, but the Telecommunications Act of 1996 ("the Act") amended the preceding as follows:

SEC. 507. CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS. (a) IMPORTATION OR TRANSPORTATION- Section 1462 of title 18, United States Code, is amended -- (1) in the first undesignated paragraph, by inserting `or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934)' after `carrier'; and (2) in the second undesignated paragraph -- (A) by inserting `or receives,' after `takes'; (B) by inserting `or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934)' after `common carrier'; and (C) by inserting `or importation' after `carriage'.

Seems innocuous, until you put 2 and 2 together. As amended by Section 507(a) of the Act, 18 U.S.C. §1462(c) now reads as follows:

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or other interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934), for carriage in interstate or foreign commerce -

* * * (c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or a notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or

whoever knowingly takes or receives from such express company or other common carrier or other interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934), any matter or thing the carriage or importation of which is herein made unlawful -

Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

What's interesting is that under 18 U.S.C. §3559(a), violation of 18 U.S.C. §1462 is a Class D felony. And under 18 U.S.C. §3571(b), the fines for individuals for violating 18 U.S.C. §1462 may be up to $250,000; under 18 U.S.C. §3571(c), the fines for organizations for violating 18 U.S.C. §1462 may be up to $500,000.

Section 507 (c) of the Act states:

The amendments made by this section are clarifying and shall not be interpreted to limit or repeal any prohibition contained in sections 1462 and 1465 of title 18, United States Code, before such amendment, under the rule established in United States v. Alpers, 338 U.S. 680 (1950).

Consequently, Congress explicitly indicated its intent to leave in force all the pre-existing provisions of 18 U.S.C. §1462.

In other words, giving out abortion information over the Internet, as of 1996, is illegal. Wow!


18 U.S.C. §1463 Mailing indecent matter . . .
All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, and all postal cards upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, or obscene character are written or printed or otherwise impressed or apparent, are nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postal Service shall prescribe.
Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable matter, or knowingly takes the same from the mails for the purpose of circulating or disposing of or aiding in the circulation or disposition of the same, shall be fined not more than $5,000 or imprisoned not more than five years, or both.


18 U.S.C. §1464 Broadcasting obscene language
Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.


18 U.S.C. §1696 Private express for letters and packets
(a) Whoever establishes any private express for the conveyance of letters or packets, or in any manner causes or provides for the conveyance of the same by regular trips or at stated periods over any post route which is or may be established by law, or from any city, town, or place to any other city, town, or place, between which the mail is regularly carried, shall be fined not more than $500 or imprisoned not more than six months, or both.


18 U.S.C. §2386 Registration of certain organizations
The following organizations shall be required to register with the Attorney General:
Every organization, the purpose or aim of which, or one of the purposes or aims of which, is the establishment, control, conduct, seizure, or overthrow of a government or subdivision thereof by the use of force, violence, military measures, or threats of any one or more of the foregoing.
Every registration statement required to be filed by any organization shall contain the following information and documents . . . [a] copy of each book, pamphlet, leaflet, or other publication or item of written, printed, or graphic matter issued or distributed directly or indirectly by the organization, or by any chapter, branch, or affiliate of the organization, or by any of the members of the organization under its authority or within its knowledge, together with the name of its author or authors and the name and address of the publisher . . .
Whoever violates any of the provisions of this section shall be fined not more than $10,000 or imprisoned not more than five years, or both.


18 U.S.C. §2702 Disclosure of contents
(a) Prohibitions. - Except as provided in subsection (b) -
(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and
(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service . . .


18 U.S.C. §2709 Counterintelligence access . . .
(a) Duty to Provide. - A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section. . . .
(c) Prohibition of Certain Disclosure. - No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.


22 U.S.C. §614 Filing and labeling of political propaganda
It shall be unlawful for any person within the United States who is an agent of a foreign principal and required to register under the provisions of this subchapter to transmit or cause to be transmitted in the United States mails or by any means or instrumentality of interstate or foreign commerce any political propaganda for or in the interests of such foreign principal (i) in the form of prints, or (ii) in any other form which is reasonably adapted to being, or which he believes will be, or which he intends to be, disseminated or circulated among two or more persons, unless such political propaganda is conspicuously marked at its beginning with, or prefaced or accompanied by, a true and accurate statement, in the language or languages used in such political propaganda, setting forth the relationship or connection between the person transmitting the political propaganda or causing it to be transmitted and such propaganda . . .


23 U.S.C. §131 Control of Outdoor Advertising
(a) The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty. . . .
(c) Effective control means that such signs, displays . . . if located within six hundred and sixty feet of the right-of-way . . . located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, (3) signs, displays, and devices, including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located, (4) signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, or historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term "free coffee" shall include coffee for which a donation may be made, but is not required.

Note: This law seemingly prohibits highway signs pertaining to political speech!


36 U.S.C. §172 Pledge of allegiance to the flag; manner of delivery
The Pledge of Allegiance to the Flag, "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.", should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.

[Historical note: the war with Germany in 1942 (and the familiar salute rendered by the Germans to "Der Fuhrer" during that war) led to the following change from the original text of the statute: on December 22, 1942, the following words were deleted from the instructions about the way to show respect for the flag: "extending the right hand, palm upward, toward the flag and holding this position until the end, when the hand drops to the side". See 36 U.S.C.S. §172, pp. 141-2 (1982).]


36 U.S.C. §176 Respect for flag
No disrespect should be shown to the flag of the United States of America
; the flag should not be dipped to any person or thing . . .
(g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature. . . .
(i) The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.
(j) No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. . . .
(k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

Contrast this with the following statute:


18 U.S.C. §700 Desecration of the flag of the United States; penalties
(a) (1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.
(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled. . . .
(d) (1) An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the constitutionality of subsection (a).
(2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal and advance on the docket and expedite to the greatest extent possible.


36 U.S.C. §410 Propaganda activities prohibited
No part of the activities of the corporation shall consist of carrying on propaganda.


40 U.S.C. §13k Parades or assemblages. . .
It shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.


47 U.S.C. §227 Fax equipment
(a) (2) The term "telephone facsimile machine" means equipment which has the capacity (A) to transcribe text or images; or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from electronic signal received over a regular telephone line onto paper.
(d) (1) Prohibition. It shall be unlawful for any person within the United States -
(A) to initiate any communication using a telephone facsimile machine, or to make any telephone call using any automatic telephone dialing system, that does not comply with the technical and procedural standards prescribed under this subsection, or to use any telephone facsimile machine or automatic telephone dialing system in a manner that does not comply with such standards; or
(B) to use a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual.
(2) Telephone facsimile machines. The Commission shall revise the regulations setting technical and procedural standards for telephone facsimile machines to require that any such machine which is manufactured after one year after the date of enactment of this section clearly marks, in a margin at the top or bottom of each transmitted page or on the first page of each transmission, the date and time sent, an identification of the business, other entity, or individual sending the message, and the telephone number of the sending machine or of such business, other entity, or individual.

[This law prohibits anonymous transmission by fax. Supposely, laws preventing anonymity are unconstitutional. At least, that's what the Court said in Talley v. State of California, 362 U.S. 60 (1960). In that incorporated Fourteenth Amendment case, Judge Black stated that:

The question presented here is whether the provisions of a Los Angeles City ordinance restricting the distribution of handbills 'abridge the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution.' The ordinance, §28.06 of the Municipal Code of the City of Los Angeles, provides:

No person shall distribute any hand-bill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of the following:

(a) The person who printed, wrote, compiled or manufactured the same.

(b) The person who caused the same to be distributed; provided, however, that in the case of a fictitious person or club, in addition to such fictitious name, the true names and addresses of the owners, managers or agents of the person sponsoring said hand-bill shall also appear thereon. [1]

As Black noted,

There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. 'Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value'. Lovell v. City of Griffin, 303 U.S. at page 452 . . .

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.[2]

It is ironic that a municipality is prohibited from abridging speech in this manner, in the absence of an express Constitutional prohibition, while Congress is not prohibited, in the presence of an express Constitutional prohibition.]


47 U.S.C. §228 Regulation of carrier offering of pay-per-call services
(a) Purpose. It is the purpose of this section-
(l) to put into effect a system of national regulation and review that will oversee interstate pay-per-call services; and
(2) to recognize the Commission's authority to prescribe regulations and enforcement procedures and conduct oversight to afford reasonable protection to consumers of pay-per-call services and to assure that violations of Federal law do not occur. . . .


47 U.S.C. §303a Standards for children's television programming
(b) Advertising duration limitations
Except as provided in subsection (c) of this section, the standards prescribed under subsection (a) of this section shall include the requirement that each commercial television broadcast licensee shall limit the duration of advertising in children's television programming to not more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays.


47 U.S.C. §317 Announcement of payment for broadcast
(1) All matter broadcast by any radio station for which any money, service or other valuable consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person, shall, at the time the same is so broadcast, be announced as paid for or furnished, as the case may be, by such person . . .
(2) Nothing in this section shall preclude the Commission from requiring that an appropriate announcement shall be made at the time of the broadcast in the case of any political program or any program involving the discussion of any controversial issue for which any films, records, transcriptions, talent, scripts, or other material or service of any kind have been furnished, without charge or at a nominal charge, directly or indirectly, as an inducement to the broadcast of such program.


47 U.S.C. §335 Direct Broadcast Satellite Service Obligations
(b) (1) Channel capacity required. The Commission shall require, as a condition of any provision, initial authorization, or authorization renewal for a provider of direct broadcast satelhte service providing video programming, that the provider of such service reserve a portion of its channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature. . . .


47 U.S.C. §399 Editorializing . . . prohibited
(a) No noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office. . . .

[This law was declared unconstitutional in F.C.C. v. League of Women Voters, 468 U.S. 364 (1984). According to the Court, "§399's broad ban on all editorializing by every station that receives CPB funds far exceeds what is necessary to protect against the risk of governmental interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of government. The regulation impermissibly sweeps within its prohibition a wide range of speech by wholly private stations on topics that do not take a directly partisan stand or that have nothing whatever to do with federal, state, or local government."[3]

In that supposedly pro-First Amendment decision, the Court rejected the First Amendment's clear directives, and substituted a fake First Amendment exclusion of speech which "take[s] a directly partisan stand".

In any event, Congress took the Court's advice, and four years later replaced the statute with the following:

No noncommercial educational broadcasting station may support or oppose any candidate for political office.
(As amended Nov. 7, 1988, P.L. 100-626, §10, 102 Stat. 3211)

Progress? Perhaps from a policy standpoint, but the new version still unconstitutionally abridges the freedom of speech. When it rains, it pours.

Even worse, the F.C.C. regulation reflecting this law was not changed. What does this mean? Apparently, it means that there are two sets of laws of the books. Instead of one law regulating speech, now we have two. Not only is "editorializing" still prohibited, but so is support or opposition of political candidates.


47 U.S.C. §605 Unauthorized publication . . .
Except as authorized by chapter 119, title 18, United States Code [18 U.S.C. §§2510 et seq.] . . . No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is broadcast or transmitted by amateurs or others for the use of the general public . . .


47 U.S.C. §606 War powers of President
(c)
Suspension or amendment of rules and regulations applicable to certain emission stations or devices. Upon proclamation by the President that there exists . . . a state of public peril [note: no war required, contrary to the title of this statute -- BK] or disaster or other national emergency, or in order to preserve the neutrality of the United States , the President, if he deems it necessary in the interest of national security or defense, may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States as prescribed by the Commission, and may cause the closing of any station for radio communication, or any device capable of emitting electromagnetic radiations between 10 kilocycles and 100,000 megacycles, which is suitable for use as a navigational aid beyond five miles, and the removal therefrom of its apparatus and equipment, or he may authorize the use or control of any such station or device and/or its apparatus and equipment, by any department of the Government . . .


Unconstitutional Federal Regulations

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1 Talley, pp. 60-1.
2 Talley, pp. 64-5 (footnote omitted).
3 FCC, p. 395.